DETENTION MONITORING TOOL FACTSHEET Protection against reprisals 4. What can monitoring bodies do? When serious incidents occur in custody – whatever the circumstances – victims and their families, as well as witnesses to the events, have to be protected against any form of reprisal or intimidation.75 Unless explicitly mandated to do so, monitoring bodies are usually not directly involved in the investigations of serious incidents. Nevertheless, they can play a vital role regarding many different aspects of the management and investigation of serious incidents in custody. The Nelson Mandela Rules refer to the protection of potential victims and witnesses in Rule 34, stipulating that, upon detecting signs of torture or ill-treatment of a detainee, proper procedural safeguards shall be followed in order not to expose the prisoner or associated persons to foreseeable risk of harm. Rule 57(2) requires that complainants must not be exposed to any risk of retaliation, intimidation or other negative consequences as a result of having submitted a request or complaint; and Rule 71(3) requires that in cases of death or serious injury in custody, or allegations or other indications of torture or ill-treatment or disappearance, steps are to be taken immediately to ensure that all potentially implicated persons have no contact with the witnesses, the victim or the victim’s family. Rule 25 of the Bangkok Rules stipulates that women who report abuse shall be provided immediate protection, and that protection measures shall take into account specifically the risks of retaliation. Victim and witness protection measures could include a transfer of the person in question to another place of detention if necessary.76 There should also be rules on mandatory investigations of indications of reprisals, a procedural obligation to scrutinise the motives behind a withdrawal of a complaint, and in the case of staff, removal from direct contact with detainees and consideration of a leave of absence or suspension of alleged perpetrators while the investigation is taking place. Segregation of the victim for protection should be only used as a measure of last resort and should be for the shortest time possible.77 What could monitoring bodies check? • Are legal regulations in place to protect victims and witnesses against reprisals and intimidation? • Have detainees who were victims or witnesses of serious incidents de facto been protected against reprisals and intimidation? • Have protective measures involving segregation of the victim been used only in exceptional cases as a last resort, for as short a time as possible and subject to independent review? Monitoring bodies can influence the legal framework in place that regulates the institutional setup of independent investigative bodies, as well as the procedures for investigations into serious incidents. Moreover, they can ensure that the prison system has procedures in place for the management of and response to serious incidents. Through preventive monitoring, National Preventive Mechanisms in particular can assess individual cases to identify systemic issues leading to serious incidents in a given prison or wider prison system. They can scrutinise actions taken by prison administration and staff in the immediate aftermath of a serious incident, as well as at a later period, including during any investigation. Furthermore, monitoring bodies should check whether adequate preventive measures and policies are in place and sufficiently known about by prison staff. Monitoring bodies can follow the investigations conducted and assess whether prison administrations cooperated in line with international standards and whether the elements for an effective investigation were met. Monitoring bodies should regularly assess the implementation of recommendations made by any investigatory body. Many bodies, including National Preventive Mechanisms, monitor different detention settings and therefore can identify cross-cutting lessons or good practices which can be replicated. Monitoring bodies can contribute to the protection of victims and witnesses in detention against reprisals by assessing policies and practices in place for this. They can also conduct regular and confidential follow-up visits to prisoners at risk. Finally, monitoring bodies should be part of assessments on the lessons learned in cases of serious incidents in custody. Certainly, it is one of the main tasks of any monitoring body to make recommendations on structural changes to the prison system, which aim at preventing disappearances, torture or ill-treatment and avoiding deaths or serious injuries. Penal Reform International and Association for the Prevention of Torture | Incident management and independent investigations |9